MISSOURI ESSAY QUESTION NO. 3

ADMINISTRATIVE LAW

FEBRUARY 1995 BAR EXAMINATION

Horace Dimbulb was principal at Wisdom Senior High School from 1987 to 1993. Malcolm Smart, Wisdom Schools' Superintendent, sent Dimbulb many memos throughout his career as principal highlighting serious performance problems such as failing to have master student assignment schedules so that some students had no assignments and others had double assignments, and failing to exert any control over student behavior in the school building as evidenced by students running boisterously down halls during class periods and openly using profane language to teachers. Despite the memos, Dimbulb's performance did not improve. 

In February, 1993, Smart told Dimbulb that he would not recommend Dimbulb for re-employment as principal. The Wisdom -School District's Board of Directors voted not to re-employ Dimbulb as principal and to offer him a teacher's position on April 14, 1993. The Board prepared a letter advising Dimbulb of its decision and sent one copy regular mail, one copy certified mail, and gave a third copy to Smart to hand deliver to Dimbulb on the 15th. 

Dimbulb knowing that the Board notified school employees of its decisions regarding reappointments on April 15th of each year, took a sick day on April 15, 1993, Smart was unable to hand deliver the letter due to Dimbulb's absence, The Board then hired a private process server, Will Getu, on April 15th who tried to serve Dimbulb at his home several times on April 15th with no luck. Getu testified at the hearing that he could see Dimbulb in his home through the window, but Dimbulb would not open the door. Dimbulb received a letter from the Board advising him of the Board's decision in the regular mail on April 16th and a teacher's contract was on his chair when he returned to school on the 16th. 

As a principal, Dimbulb's rights are governed by 168.101 RSMo. Pertinent subparts of 168.101 provide: 
 

*(3) Each school board . . . shall notify each . . . employee in writing  concerning his reemployment in his present staff position or lack thereof on  or before the fifteenth day of April . . . . Failure on the part of a board to give  the notice constitutes reemployment of the same terms and in the same staff  position

*(6) If such . . . employee has been reemployed five times within the district, the  school board, if requested in writing by such . . . employee within ten days  after receipt of notice of demotion or lack of reemployment on the same terms  and in the same staff position, shall make available in writing a statement of  reasons for demotion or lack of reemployment within ten days after receipt of  request. The board shall grant such . . . employee a hearing if requested in  writing by him within ton days after the receipt of statement of reasons, the  hearing to be held within ten days after the request therefor, and to be open  at the request of the . . . employee. The . . . employee may have counsel at  the hearing, may testify and offer evidence sustaining his defense and may  cross examine adverse witnesses.

* 536.010(2) "Contested case" means a proceeding before an agency  in which legal rights, duties or privileges of specific parties are required by  law to be determined after hearing.

*536.073 (1) In any contested case before an agency . . . any party  may take and use depositions in the same manner, upon and under the same  conditions, and upon the same notice, as . . . is provided for with respect to  the taking and using of depositions in civil action in the circuit court . . . .

Upon notice of the Board's decision, Dimbulb timely requested a hearing and a statement of reasons for the Board's decision pursuant to 168.101 (6). The Board fully and timely complied with his requests. Dimbulb took multiple depositions prior to the hearing. Barry Ster, Esq. represented Dimbulb during the hearing, and called and crossexamined witnesses. The hearing was transcribed and both parties submitted exhibits and trial briefs. 

Following the hearing, the Board sustained its decision not to re-employ Dimbulb as a principal and issued Findings of Fact and Conclusions of Law. Dimbulb sought judicial review of the Board's decision in the circuit court which sustained the Board's decision. Dimbulb then appealed the case to the Missouri Court of Appeal, Northern District raising three points on appeal: 1) the trial court erred in reviewing the case as a contested case; 2) several of the Board's Findings of Fact were contrary to the exhibits and testimony offered at the hearing; and 3) the Board failed to notify Dimbulb in a timely fashion of Its decision not to re-employ him as a principal and such failure constituted reemployment as a principal. 

QUESTIONS: 

1. What argument(s) should Dimbulb make to show to the appellate court that the case was not a contested case? 

2. How should the attorney for the Board respond to Dimbulb's argument(s) on the contested case issue? 

3. What standard of review should the appellate court use to determine the validity of Dimbulb's claim that some of the Board's Findings of Fact are contrary to the exhibits and testimony offered at the hearing? 

4. Finally, what should the court's ruling be on Dimbulb's claim that the Board did not notify him in a timely fashion of its decision not to re-employ him as principal and such failure constituted reemployment as a principal? Why? 

MISSOURI ESSAY QUESTION

ADMINISTRATIVE LAW

1996 BAR EXAMINATION

A. 

       Your client. Mr. I. B. Bad, is licensed by the Missouri Board of Embalmers and Funeral Directors and lives in and maintains a funeral home in Stumble County, Missouri. Stumble County is a poor county, with few families able to afford the costs of an expensive funeral. As the only funeral director in Stumble County, Mr. Bad also provides services to the county and embalms and buries its indigent residents for a fixed fee. In the last few years, Mr. Bad has regularly lost money in his business, and therefore has had to cut costs. Although the law requires him to place every casket in a vault for underground burial, Mr. Bad has, for the last several years, ignored the requirement and buried only the casket. He successfully conducted this practice for several years without anyone except his grave diggers being aware of it. 

    Because of continued financial hardship, Bad had to discharge one of his long-time employees, Mr. Graves, from the grave digging crew. Graves had worked for Bad for many years and was extremely angry at being fired. To make matters worse, the wild dog pack that regularly roamed Stumble County had difficulty finding food and recently uncovered a casket that was buried only three feet below the surface without a vault, contrary to law. The loved ones of the uncovered deceased contacted Mr. Bad and threatened him with disclosure unless he paid them a sum of money far beyond his means. 

    Approximately six months following the discharge of Graves and the dog digging incident, an investigator for the Board paid a visit to Bad's funeral home and began asking him questions about his burial practices. Approximately four days later, Bad received a letter from the Board as follows: 
 

Dear Mr. Bad:     Following our investigation, the Board of Embalmers has determined that cause exists to discipline your license as an embalmer and funeral director. In settlement, the Board will accept the surrender of your license. Your license will be reinstated to you one year following the surrender of same. Please respond within ten days from the date hereof. 

Bad brings the letter to you and asks what he should do. He wants to know what information the Board has received--and who, if anybody, has made a complaint against him. No formal Complaint has yet been filed with the Administrative Hearing Commission. What do you tell him? What should you do? 

B. 

    Presume that a Complaint has been filed with the Administrative Hearing Commission and both sides have presented evidence. The Commissioner was so shocked by your client's conduct that he wants Mr. Bad's license revoked immediately. The Commissioner, ruling from the bench, states: 
 

"I find Mr. Bad's misconduct gross and outrageous and find that there is probable cause for revocation of his Embalmers and Funeral Director's license. I remand this cause to the Board to immediately revoke Mr. Bad's license." 

Question 2: 

Mr. Bad wants to challenge the revocation and asks you where you can go from here and what issues you would raise on his behalf. What do you tell him? 
 

MISSOURI ESSAY QUESTION NO. 3

ADMINISTRATIVE LAW

JULY 1999 BAR EXAMINATION

Bootheel Trucking Company ("BTC") is an intrastate motor carrier subject to regulation by the Missouri Division of Motor Carrier & Railroad Safety ("Division"). BTC is a fairly large trucking operation for Southeast Missouri, employing seventy-five drivers and "hauling" from the Arkansas State line as far north as St. Louis. Its safety record is the envy of the Missouri trucking industry - - in the last ten years, only one BTC truck has been involved in an accident. Last month, however, another BTC driver was in an accident and a little girl was killed. The leading St. Louis newspaper ran a front page article about this accident in which the writer stated that it was caused by the failure of the brakes on the BTC truck. The paper also editorialized at length regarding the claimed failure of the Division to enforce regulations designed to ensure the safe operation of commercial vehicles on Missouri highways.

Within a week of the appearance of the story and editorial in the St. Louis paper, the Division promulgated a new administrative regulation, designed to compel compliance with existing safety regulations set forth in 4 C.S.R. 265-10.010, et seq. This new regulation, 4 C.S.R. 265-10.150, provides as follows:

The Director of [the Division] may, in his discretion, suspend or revoke the operating authority and license of any common or contract motor carrier licensed by [the Division] whenever he determines that such suspension or revocation is conducive to the public welfare and safety of the State of Missouri.

One week after the promulgation of this new regulation, a BTC driver received a traffic ticket for speeding. Two days later, the president of BTC, Charles "Crash" Carrier, received a letter from the Division's director-summarily revoking BTC's license and operating authority pursuant to the new regulation. No reason was stated for the revocation, and there was no notice or opportunity for a hearing prior to the revocation. The revocation was effective immediately.

Mr. Carrier comes to your office for help with regard to this revocation. In addition to the foregoing information, he tells you that the driver involved in the fatal accident which drew the attention of the St. Louis papers leased his truck to BTC. Pursuant to the terms of that lease agreement, the driver was responsible for maintenance of the brake equipment. Mr. Carrier instructs you to take whatever actions are available to challenge the revocation of BTC's license and operating authority.

1) Where, when, and how may you challenge the revocation of the BTC license and operating authority? Please discuss.

2) What issues and arguments would you raise in supporting your contention that the revocation of BTC's license and operating authority is invalid?

3) Assume that you seek judicial review of the revocation. How will the court rule and why?

MISSOURI ESSAY QUESTION NO. 3

ADMINISTRATIVE LAW

February,1999

W.J. Slick was elected Mayor of Whitewater, Missouri for a four year term in November, 1996. In late December, 1998, he received the following document from the Whitewater City Council which stated:

Bill of Impeachment

To: W.J. Slick, Mayor of the City of Whitewater, Missouri

Pursuant to Section 77.340 RS.Mo., and other applicable statutes, you are hereby notified that, as the charged party, you shall be the subject of impeachment proceedings to determine whether of not you should and/or shall be removed from the Office of Mayor of the City of Whitewater, Missouri (the "City").

Said impeachment proceedings based upon the below stated numbered charges, shall be commenced on Thursday evening, February 4, 1999 at the Whitewater City Hall, 1600 Pennsylvania Avenue, Whitewater, MO 63000, or at such later date and time as may be necessary.

1. During or about June, 1998, you violated your oath of office and Missouri Statutes, by circumventing efforts of the City's Chief of Police to enforce Missouri's gaming and gambling laws by allowing your political advisor to have a Pachinko game in his office.

2. During or about November, 1998, you violated your oath of office and Missouri Statutes by directing the City's Chief of Police not to enforce the City's leash law, City Ordinance No. 86-222, as to any animals, including your labrador retriever.

3. During your term as Mayor, you have consistently failed to uphold your oath of office and have engaged in unethical and unlawful behavior.

The Bill of Impeachment was signed by all eight members of the Whitewater City Counsel.

Section 77.340 RS.MO, provides in part:

The mayor may, with the consent of a majority of all the members elected to the city counsel, remove from office for cause shown, any elective officer of the city,

such officer being first given the opportunity, together with his witnesses, to be heard before the council, sitting as a court of impeachment. Any elective officer may, in like manner for cause shown be removed from office by a two-thirds vote of all members elected to the city council, independently of the mayor's approval or recommendation.... (emphasis added).

During his term in office, Mayor Slick repeatedly made public accusations against City Council member, Henrietta Jekyll, of unethical behavior, including assisting in the drafting of the City's solid waste ordinance when, at the same time, she was forming a private waste hauling business, and resisting arrest when stopped on suspicion of driving while intoxicated. Slick also publicly requested the resignation of another councilperson for alleged ticket fixing. That councilperson voluntarily recused himself from impeachment proceedings and did not vote following the hearing.

At the February 4, 1999 hearing, Jekyll testified that she had not formed any unalterable opinion about the Mayor and the three charges before the hearing. Slick also attended the hearing and presented testimony and evidence. Following the hearing and based upon the evidence, the Whitewater City Council voted to remove Mayor Slick from office in a 6-1 vote on all charges set forth in the Bill of Impeachment.

Following this determination, former Mayor Slick comes to you for legal advice. He is interested in what recourse he has at this point. He suspects that Coucilperson Jekyll poisoned the other members of the Whitewater City Council against him due to his prior vitriolic lambastings of her but has no direct evidence to support his suspicions.

You propose filing a Petition for Review with the appropriate Circuit Court.

1. What grounds will you raise for reversing the Whitewater City Council's actions in your Petition for Review? (Hint: There are at least three).

2. Assess your chances of succeeding on these grounds.

3. Assume Slick contacted you before the February 4, 1999 hearing, and that he advised you that while he had no evidence, he felt the Whitewater City Council Members had already made up their minds and would not give him a fair hearing. He urged you to seek redress on his behalf directly to the Circuit Court and skip the hearing. What advice do you give him at this point and why?